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Wednesday, February 27, 2013

US Supreme Court refuses to let Americans challenge FISA eavesdropping law

The United States Supreme Court will not let Americans challenge a provision in a foreign intelligence law that lets the federal government secretly eavesdrop on the intimate communications of millions of Americans.
February 26, 2013

On Tuesday, the top justices in the US said the country’s highest court will not hear a case in which Amnesty International and a slew of co-plaintiffs have contested a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, that lets the National Security Agency silently monitor emails and phone calls. [pdf]
Under the FISA Amendments Act of 2008 (FAA), the NSA is allowed to conduct electronic surveillance on any US citizen as long as they are suspected of conversing with any person located outside of the United States. That provision was scheduled to expire at the end of 2012, but Congress voted to re-up the bill and it was put back on the books for another five years.
Along with human rights workers and journalists, Amnesty International first challenged the FAA on the day it went into effect, arguing that the powers provided to the NSA under the FISA amendments likely puts the plaintiffs and perhaps millions of other Americans at risk of surveillance. Now years later, though, they are finally being told that they cannot challenge the law that, while meant to collect foreign intelligence, puts every person in the country at risk of being watched.
Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals,” the American Civil Liberties Union wrote on behalf of the plaintiffs in a legal brief filed last year with the court.
Amnesty, et al have been pursuing an injunction against the NSA in their lawsuit, which names former NSA-Chief James Clapper is a co-defendant. Because the plaintiffs cannot prove that they've actually been targeted under the FAA, however, the case is been stalled endlessly.
In last year’s filing, the ACLU acknowledged that an appeals court panel agreed in 2011 that “plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” and the full body of US Court of Appeals for the Second Circuit later refused the government’s attempts to have them reconsider.
But instead of allowing the case to be heard on the merits, the Obama administration asked the Supreme Court to review the case,” the ACLU’s Ateqah Khaki, wrote. “Our brief urges the Court to affirm the appeals court’s decision.
On Tuesday, however, the Supreme Court dismissed the claims that the plaintiffs were being watched under the FAA. Amnesty and others had argued that the presumed surveillance they were subjected to has caused them to go out of their way to maintain working relationships with clients, forcing them to travel abroad to communicate without the fear of being monitored.
In the suit, the plaintiffs have said that because they communicate “with people the Government ‘believes or believed to be associated with terrorist organizations,’ ‘people located in geographic areas that are a special focus’ of the Government’s counter terrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government,” they've undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications.
"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the 5-4 decision, calling it "hypothetical future harm."
In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance,” the court ruled. “Respondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under [the FAA] and their subjective fear of surveillance does not give rise to standing.”
But only last year, Amnesty et al were given good reason to worry right from the NSA: Senators Ron Wyden (D-OR) and Mark Udall (D-CO) sent a letter to the Office of the Inspector General of the Intelligence Community asking, “how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702” of the FISA Amendment Act (FAA). The NSA responded by rejecting the lawmakers’ request, and said a “review of the sort suggested would itself violate the privacy of US persons.”
All that Senator Udall and I are asking for is a ballpark estimate of how many Americans have been monitored under this law, and it is disappointing that the Inspectors General cannot provide it,” Sen. Wyden told Wired’s Danger Room at the time. “If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’ loophole, to keep the government from searching for Americans’ phone calls and emails without a warrant.
In the court’s majority opinion, five justices even added that the government’s ability to wiretap Americans doesn’t begin and end with FISA, either. "The Government has numerous other methods of conducting surveillance, none of which is challenged here,” they ruled.
Because respondents do not face a threat of certainly impending interception” under FISA, “the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,” the court told the plaintiffs.
Journalists Chris Hedges and Naomi Klein joined Amnesty in the case, along with Joanne Mariner, the Terrorism and Counter terrorism Program Director at Human Rights Watch, attorney Sylvia Royce and others.
Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas ruled in the majority.  Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all dissented.

Monday, February 25, 2013

Hacker Jeremy Hammond attacks US cyberwars from behind bars
February 22, 2013 15:35

Only hours before a federal judge dismissed concerns over a possible conflict of interest and refused to step down in the case against hacker Jeremy Hammond, the defendant issued a strong-worded assault critiquing the government that’s prosecuting him.

On Thursday, US Federal Judge Loretta Preska denied a motion for disqualification entered in the court two months earlier by attorneys for Hammond, a 27-year-old political activist awaiting trial for his alleged role in a high-profile series of hacks.
And although the judge acknowledged this week that her husband of over 30 years was victimized in one of those hacks, Preska said the defense’s request for rescue was based off of insubstantial and insufficient speculation.
“Upon review of the record, Defendant has fail to carry his substantial burden of showing that a reasonable observer, with knowledge and understanding of the relevant facts, would ‘entertain significant doubt that justice would be done absent recusal,’” Judge Preska told the court [.pdf].
The federal government has accused Hammond of participating with the shadowy hacktivist movement Anonymous and two offshoots — LulzSec and AntiSec — in a laundry list of cyber escapades that have targeted, among others, the Arizona Department of Public Safety, security firm HBGary Federal and Strategic Forecasting Inc., or Stratfor — a private intelligence company that has been called a “Shadow CIA” by some. 
With regards to the Stratfor hack, Hammond and others are attributed with swiping data from the company’s servers in December 2011 and then publicly releasing internal emails, client lists and subscriber credit card information. Two months ago, it was discovered that the name and email address of Judge Preska’s husband, attorney Thomas Kavaler, were included in the files pilfered from Stratfor and then circulated by members of Anonymous and the media. 
The internal correspondence, some of which has led to significant news breaks in their own right, has also been continuously published by the WikiLeaks whistleblower site.
Mr. Kavaler’s information was indeed released through the hack, the judge admitted, but no other sensitive information of his had been compromised. Further, Judge Preska dismissed concerns that both she and her husband maintained professional relationships with others who were victimized, vaguely or otherwise, in the hack.
“The reasonable observer would conclude that any appearance of this court’s interest in Mr. Kavaler as a victim of the crime is too insubstantial to require disqualification,” the judge wrote.
In regards to other possible connections between the court and the Stratfor victims, Judge Preska wrote,“[the] Defendant’s attempt to draw such a link is futile.”
With Judge Preska’s latest ruling, the case will remain stagnant until the next hearing on April 10. At that point, however, Hammond will have been imprisoned for over 13 months without trial. This ongoing detention has earned Hammond the unique title of being “The Other Bradley Manning” by some members of the press, drawing comparisons to the Army Private and fellow alleged WikiLeaks source who has so-far spent over 1,000 days in confinement without going to trial. 
But unlike Private Manning, who has maintained little public correspondence with those outside prison, Hammond penned an open letter critiquing multiple prongs of the government that was published this week just before Judge Preska’s ruling. 
And while Preska may have the last word for now, Hammond’s opining offers a sharply-worded assessment of the Justice Department and Washington in general that all but predicts the ongoing persecution he is expected to endure in a court of law. 
Also, though, it attacks the escalating rhetoric from Washington about the emerging threat of cyberwar, a warning made as the United States' own sophisticated attacks on foreign nations are waged.
In his letter, obtained and published this week by Sparrow Media, Hammond assaults the government’s relentless attack on alleged computer dissidents, condemning Washington’s willingness to let an abuse of power put information activists in prison for so-called crimes of conspiracy and thievery. 
In particular, Hammond implored for justice in wake of the recent death of info activist Aaron Swartz, who passed away of an apparent suicide last month while awaiting trial for a controversial computer crime case.
“The tragic death of Internet freedom fighter Aaron Swartz reveals the government’s flawed ‘cyber security strategy’ as well as its systematic corruption involving computer crime investigations, intellectual property law, and government/corporate transparency,” Hammond writes. “The United States Attorney’s aggressive prosecution, riddled with abuse and misconduct, is what led to the death of this hero. This sad and angering chapter should serve as a wake-up call for all of us to acknowledge the danger inherent in our criminal justice system.”
Hammond goes on to call the prosecution of Swartz just another installment in the “recent aggressive, politically-motivated expansion of computer crime law where hackers and activists are increasingly criminalized because of alleged ‘cyber-terrorist’ threats.” Elsewhere, he accuses the government of unimaginable hypocrisy by waging a war on politically-minded hacktivists while training America’s future military elite to engage in war over the Internet, not on the battlefield.
“The United States Attorney for the Southern District of New York, Preet Bharara, whose office is prosecuting me and my co-defendants in the LulzSec indictment, has used alarmist rhetoric such as the threat of an imminent ‘Pearl Harbor like cyber-attack’ to justify these prosecutions.
At the same time the government routinely trains and deploys their own hackers to launch sophisticated cyber-attacks against the infrastructure of foreign countries, such as the Stuxnet and Flame viruses, without public knowledge, oversight, declarations of war, or consent from international authorities. DARPA, US Cyber Command, the NSA, and numerous federally-contracted private corporations openly recruit hackers to develop defensive and offensive capabilities and build Orwellian digital surveillance networks, designed not to enhance national security but to advance U.S. imperialism.
They even attend and speak at hacker conferences, such as DEFCON, offer to bribe hackerspaces for their research, and created the insulting “National Civic Hacker Day” – efforts which should be boycotted or confronted every step of the way,”  says Hammond.
Later, Hammond offers words of support for other victims of the government’s witch-hunt that have so far managed to escape punishment like what he has been forced to endure. In regards to the so-called PayPal 14, hacktivists that will soon go in court over a 2010 protest against the online payment site in retaliation for their blacklisting of WikiLeaks, Hammond says, “these digital activists face prison time of more [than] 10 years, $250,000 in fines and felony convictions because the government wants to criminalize this form of internet protest and send a warning to would be WikiLeaks supporters.”
Also name-checked is Andrew “Weev” Auernheimer, who is currently appealing a recent conviction obtained through an odd interpretation of the Computer Fraud and Abuse Act, or CFAA.
“The sheer number of everyday computer users who could be considered criminals under these broad and ambiguous definitions enables the politically motivated prosecution of anyone who voices dissent. The CFAA should be found unconstitutional under the void-for-vagueness doctrine of the due process clause. Instead, Congress proposed bills last year which would double the statutory maximum sentences and introduce mandatory minimum sentences, similar to the excessive sentences imposed in drug cases which have been widely opposed by many federal and state judges,” writes Hammond. 
Auernheimer, writes Hammond, simply exposed a security-flaw that was quickly patched by AT&T.
“Instead of acknowledging their own mistake in violating customer privacy, AT&T sought prison time for Andrew,” Hammond writes.
According to the Jeremy Hammond Solidarity Network, Judge Preska will have a chance to recuse herself from the trial once again when hearings resume on April 10. Meanwhile, though, the government’s highly-critiqued assessment of the CFAA could lead to other jail cells to soon be full of so-called computer criminals.
“What is needed is not reform but total transformation; not amendments but abolition,” writes Hammond.

Wednesday, February 20, 2013

John Boehner Traps Himself on the Sequester

By Jonathan Chait
New York Magazine
Feb. 20, 2013

John Boehner uses a Wall Street Journal op-ed today to signal his party’s strategy, such as it is, on the budget sequester. The main message is to blame President Obama for the budget sequester. Now, that part of the message is obviously untrue — the sequester was a way to escape an economic crisis ginned up by House Republicans, and Boehner himself touted it in 2011.
But the untruth of Boehner’s claim that Obama is the Father of the Sequester isn’t the real problem here — that fact will get buried in he-said, she-said reporting. The bigger problem with Boehner’s strategy is what comes next.
Boehner’s end goal, as explained in the op-ed, is to “reform America's safety net and retirement-security programs.” He has no proposal to do so, however. And for good reason. Cutting Social Security, Medicare, and Medicaid is really, really unpopular. Boehner wants Obama to offer his own proposals to cut these programs to give Republicans political cover. 

But Obama won’t do that unless Republicans offer to increase tax revenue. And that is the thing they absolutely, positively refuse to concede on. (Cutting a deal on spending and revenue could cost Boehner his post.)
So what is Boehner’s play here? One possibility might be to just try to cancel out the sequester — perhaps in some sneaky way by replacing it with some future commission that would pretend to cut the deficit but really wouldn’t. The trouble here is that Boehner promised his own ultra wing he would carry it out earlier this year. The other possibility would be to just live with the sequester more or less permanently, or until Republicans can gain full control of government. The trouble here is that Boehner promised his defense hawk members the sequester would never go into effect. 

Conservative reporter Byron York notes that Boehner’s message — that the sequester is a disaster – totally undermines his chances of just sticking with the sequester.
There seems to be no outcome for him that would let him attain even the minimal goal of keeping his job, let alone advancing some policy outcome he prefers.
It is actually a fascinating thing about Boehner. He keeps wedging himself into impossible situations and somehow escaping. 

One interpretation (put forward by Ross Douthat) is that he is a highly clever pol who manages to defuse crises. It could be. But it also seems that Boehner’s technique for escaping each crisis involves putting off irreconcilable promises. He got through the expiration of the Bush tax cuts and the debt ceiling by promising his members a grand, successful clash the next time.
Boehner may be in a better spot now to fight Obama, but he’s not in a good spot. He's given himself no way out save the total victory of forcing Obama to swallow entitlement cuts without revenue, a goal he almost certainly can’t attain. 

He’s the unpopular leader of an unpopular party advocating unpopular ideas against a reasonably well-regarded president, so a public fight will decrease rather than increase his leverage. Maybe Boehner has some brilliant, secret plan to escape this trap, but assumptions like that have a pretty bad track record.

Saturday, February 16, 2013

Elizabeth Warren Embarrasses Hapless Bank Regulators At First Hearing (VIDEO)

Huffington Post
Feb. 14, 2013

Bank regulators got a sense Thursday of how their lives will be slightly different now that Elizabeth Warren sits on a Senate committee overseeing their agencies.
At her first Banking, Housing and Urban Affairs Committee hearing, Warren questioned top regulators from the alphabet soup that is the nation's financial regulatory structure: the FDIC, SEC, OCC, CFPB, CFTC, Fed and Treasury.
The Democratic senator from Massachusetts had a straightforward question for them: When was the last time you took a Wall Street bank to trial? It was a harder question than it seemed.
"We do not have to bring people to trial," Thomas Curry, head of the Office of the Comptroller of the Currency, assured Warren, declaring that his agency had secured a large number of "consent orders," or settlements.
"I appreciate that you say you don't have to bring them to trial. My question is, when did you bring them to trial?" she responded.
"We have not had to do it as a practical matter to achieve our supervisory goals," Curry offered.
Warren turned to Elisse Walter, chair of the Securities and Exchange Commission, who said that the agency weighs how much it can extract from a bank without taking it to court against the cost of going to trial.
"I appreciate that. That's what everybody does," said Warren, a former Harvard law professor. "Can you identify the last time when you took the Wall Street banks to trial?"
"I will have to get back to you with specific information," Walter said as the audience tittered.
"There are district attorneys and United States attorneys out there every day squeezing ordinary citizens on sometimes very thin grounds and taking them to trial in order to make an example, as they put it. I'm really concerned that 'too big to fail' has become 'too big for trial,'" Warren said.
A Warren constituent, open-Internet activist Aaron Swartz, recently committed suicide after being hounded by federal prosecutors who reportedly said they wanted to "make an example" of him. Warren had met and said she admired Swartz and, after he died, expressed her concern by attending his memorial in Washington.
The financial regulators can blame, at least in part, Wall Street lobbyists (along with outgoing Treasury Secretary Tim Geithner and Senate Republicans) for their embarrassing turn at the hearing. Warren would have been on the panel herself representing the Consumer Financial Protection Bureau, instead of a sitting senator, if her nomination to head the agency hadn't been thwarted in 2011.

Sunday, February 10, 2013

FAA Releases New Drone List—Is Your Town on the Map?

Liberty Crier
Feb 9, 2013

View EFF’s updated Map of Domestic Drone Authorizations in a larger window. (Clicking this link will serve content from Google.)

The Federal Aviation Administration has finally released a new drone authorization list. This list, released in response to EFF’s Freedom of Information Act (FOIA) lawsuit, includes law enforcement agencies and universities across the country, and—for the first time—an Indian tribal agency. In all, the list includes more than 20 new entities over the FAA’s original list, bringing to 81 the total number of public entities that have applied for FAA drone authorizations through October 2012.

Some of these new drone license applicants include:

The State Department National Institute of Standards and Technology (NIST) 
Barona Band of Mission Indians Risk Management Office (near San Diego, California) 
Canyon County Sheriff’s Office (Idaho) 
Clackamas County Sheriff’s Office (Northwest Oregon) 
Grand Forks Sheriff’s Department (North Dakota) 
King County Sheriff’s Office (covering Seattle, Washington) 

And several new entities in Ohio, including:

Medina County Sheriff’s Office 
Ohio Department of Transportation
Sinclair Community College 
Lorain County Community College

The list comes amid extensive controversy over a newly-released memo documenting the CIA’s policy on the targeted killing of American citizens and on the heels of news that Charlottesville, Virginia has just become one of the first cities in the country to ban drones. This new list should contribute to the debate over whether using domestic drones for surveillance is consistent with the Constitution and with American values.

As we’ve written in the past, drone use in the United States implicates serious privacy and civil liberties concerns. Although drones can be used for neutral, or even for positive purposes, drones are also capable of highly advanced and, in some cases, almost constant surveillance, and they can amass large amounts of data. Even the smallest drones can carry a host of surveillance equipment, from video cameras and thermal imaging to GPS tracking and cellphone eavesdropping tools.

They can also be equipped with advanced forms of radar detection, license plate cameras, and facial recognition. And, as recent reporting from PBS and Slate shows, surveillance tools, like the military’s development of gigapixel technology capable of “tracking people and vehicles across an entire city,” are improving rapidly.

EFF hopes this list will spur more people to ask their local law enforcement agencies about their drone programs. EFF has partnered with MuckRock to make it easier to ask for and disseminate this information. We also encourage people to ask hard questions of government officials about who is funding drone development in their communities and what policies the government will demand agencies follow if they fly drones. We need greater transparency and citizen push-back to protect Americans from privacy-invasive domestic drone use.

You can find the new list of drone applicants here.

Published with authorization of Electronic Frontier Foundation


Sunday, February 03, 2013

Inside the Terror Factory

Award-winning journalist Trevor Aaronson digs deep into the FBI’s massive efforts to create fake terrorist plots.

Editor's note: This story is adapted from The Terror Factory, Trevor Aaronson's new book documenting how the Federal Bureau of Investigation has built a vast network of informants to infiltrate Muslim communities and, in some cases, cultivate phony terrorist plots. The book grew from Aaronson's award-winning Mother Jones cover story "The Informants" and his research in the Investigative Reporting Program at the University of California-Berkeley.